What is metadata? The most basic definition is that metadata is “data about data,” but this does not give practitioners much guidance. A better definition is that metadata is information associated with—and made part of—an electronic document that is not visible in the normal viewing or printing of that document. Examples include a document's file creation date, the file's location, the document's author, the word count, tracked changes and comments.

Lawyers can use metadata during the e-discovery process to more efficiently search for relevant documents. For example, by relying on document timestamps, you can set date and time restrictions to narrow the scope of your collection. Metadata can be used to authenticate documents, particularly if a case goes to trial. Metadata also provides timelines for electronically stored information (ESI). For example, if a case requires you to show the evolution of a contract over time, metadata can enable you to do that. It also can help you identify custodians who may have sent, received or made changes to a particular document.

Chief U.S. Magistrate Judge Paul W. Grimm noted in Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D.Md. May 4, 2007) that the presumption that metadata is not hearsay and is prima facie evidence of authenticity. Further, embedded metadata provides an understanding of electronic documents, and is generally discoverable and should be produced as a matter of course.

There is no question that the Federal Rules of Civil Procedure (FRCP) apply to metadata. Metadata falls under the umbrella of ESI. It should be discussed during the meet-and-confer conference. Aguilar v. ICE / DHS, 2008 WL 5062700 (S.D.N.Y. Nov. 21, 2008). Important metadata-related points to consider during the conference include the scope of collection, its accessibility and the form of production.

Earlier this year, in National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency, 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011) (opinion withdrawn upon agreement of the parties), Judge Shira Scheindlin emphasized that metadata is an integral part of an electronic record. Although it is not legal precedent, her list is a reasonable set of guidelines for in-house counsel responding to ESI requests, as follows.

The metadata that should accompany the production of any text-based ESI includes:

File Name: The original name of the item or file when collected from the source custodian or system

Custodian: The name of the custodian or source system from which the item was collected

Source Device: The device from which the item was collected

Source Path: The file path from the location from which the item was collected

Production Path: The file path to the item produced from the production media

Modified Date: The last modified date of the item when collected from the source custodian or system

Modified Time: The last modified time of the item when collected from the source custodian or system

Time Offset Value: The universal time offset of the item’s modified date and time based on the source system’s time zone and daylight savings time settings

Identifier: A unique production identifier of the item

Additional metadata fields for e-mail are:

To: Addressee(s) of the message

From: The e-mail address of the person sending the message

CC: Person(s) copied on the message

BCC: Person(s) blind copied on the message

Date Sent: Date the message was sent

Time Sent: Time the message was sent

Subject: Subject line of the message

Date Received: Date the message was received

Time Received: Time the message was received

Attachments: The Bates number ranges of e-mail attachments

The case was in the context of Freedom of Information Act (FOIA) requests. The plaintiffs had requested FOIA records from four government agencies—Immigration and Customs Enforcement, Department of Homeland Security, the FBI and Office of Legal Counsel. The defendants’ FOIA response included five .pdf files totaling less than 3,000 pages. The plaintiffs objected that the data was:

Produced in an unsearchable format

That the electronic records had been stripped of all metadata

That the paper and electronic records were merged together in the .pdf file

Judge Scheindlin first noted that FOIA requires agencies to provide records “in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.” Slip op. at 7 (citing 5 U.S.C. § 552(a)(3)(B)).

Judge Scheindlin further noted that case law has established that:

“Metadata is generally considered to be an integral part of an electronic record”

When a collection of static images (e.g., .tif files) are produced, load files must be produced to make the production searchable and reasonably usable

The significance of the opinion was that the court announced that metadata presumptively is producible under FOIA, and that the government has the burden to establish otherwise. The court’s particular concern was that the defendants’ production of static images stripped of all metadata and lumped together without any indication of where a record begins and ends was unacceptable, regardless of whether metadata had been specifically requested.

Clearly, the case law continues to point to the need to collect, preserve, process and produce ESI load files in a forensically sound manner that preserves metadata. Best practice dictates a solution that preserves metadata at the point of collection in its original native format, and never separates the metadata or parent/child relationships for e-mail throughout processing and review. When purchasing a product, look for an all-in-one solution that complies with FRCP and similar state standards dealing with metadata productions. SeeO’Neill v. City of Shoreline, 2010 WL 3911347 (Wash. Oct. 7, 2010); Lake v. City of Phoenix, 222 Ariz. 547 (Ariz. Oct. 29, 2009).